Ms I Cetin v M Mareuge-Lejeune and S Derwent Griffiths: 2200219/2020

EMPLOYMENT TRIBUNALS

Case No 2200219/2020

Between

Ms I CetinClaimant

M Mareuge-Lejeune and S Derwent GriffithsRespondent

Before

Employment Judge Brown

In person for claimant

Mr P Wilson (instructed by Counsel) for respondent

Date 22 September 2022

JUDGMENT

[1]The Tribunal does not have jurisdiction to hear the Claimant’s complaint of breach of contract because it is barred by issue estoppel;

[2]Applying the rule in Henderson v Henderson, the Claimant should, in her first claim, have raised her complaints of unfair dismissal, failure to provide pay statements, failure to provide particulars of her employment, breach of contract and race discrimination in relation to acts done during her employment from 4 December 2017 until 2 May 2018. Her doing so in this claim constitutes an abuse of process, so these claims are struck out;

[3]In any event, the unfair dismissal, failure to provide pay statements, failure to provide particulars of her employment and breach of contract claims and race discrimination in relation to acts done during her employment from 4 December 2017 until 2 May 2018 were presented out of time. Time is not extended for them. The Tribunal has no jurisdiction to consider them. 1 ph outcome jment and case mngmnt 1.5.14 version

[4]The Claimant does not have the requisite service to bring a complaint of unfair dismissal. There was no complaint of auto unfair dismissal. The claim of unfair dismissal is dismissed.

[5]The Claimant’s complaints of race discrimination, victimization and race harassment, in relation post employment obtaining references are barred by judicial proceedings immunity. Further, the Tribunal does not have jurisdiction to consider them because they were presented out and are out of time and it is not just and equitable to extend time for them. They are struck out.

[6]The Claimant’s complaints of victimization, race harassment and protected disclosure detriment in relation to the Respondents’ involvement in other family court proceedings are barred by judicial proceedings immunity. They are struck out;

[7]The Claimant’s complaints in relation to the Respondents’ conduct of her first claim 2204788/2018 barred by judicial proceedings immunity;

[8]The Claimant’s complaints of the Respondents negatively influencing her previous nanny employer, relied on as race discrimination, post employment harassment, and protected disclosure detriment, are struck out because they have no reasonable prospects of success

[9]The Claimant’s complaints of race discrimination, race harassment, victimisation and protected disclosure detriment regarding the Respondents reporting the Claimant to the police were either presented in time, or it was not reasonably practicable for them to be presented in time and they were presented within a reasonable time thereafter, or it is just and equitable to extend time for them.

[10]The Claimant’s complaints of race discrimination, race harassment, victimisation and protected disclosure detriment regarding the Respondents reporting the Claimant to the police are not struck out, nor made subject to a deposit order.

[11]All the Claimant’s claims are therefore struck out EXCEPT her complaints of race discrimination, race harassment, victimisation and protected disclosure detriment regarding the Respondents reporting the Claimant to the police.

REASONS

Discussion

[1]This Open Preliminary Hearing was listed to consider: 1.1. Whether the matters complained of by the Claimant in this claim were brought in a previous claim (case number 2204788/2018 – “the first claim”) and, therefore, the Tribunal does not have jurisdiction to hear them again (issue estoppel); 1.2. In the alternative, (applying the rule in Henderson v Henderson) the Claimant should have raised all of the complaints she now brings in the 2 ph outcome jment and case mngmnt 1.5.14 version first claim and cannot do so in the current claim/and or her doing so constitutes an abuse of process; 1.3. Whether the claims in the current claim (presented in an ET1 on 21 January 2020) are out of time (sections 111(2) Employment Rights Act 1996 and 123 Equality Act 2010) and, if so, whether the Tribunal should exercise its discretion to allow those claims to be brought outside the relevant time limit; 1.4. Whether the Tribunal has jurisdiction to hear the claim for constructive unfair dismissal, given that the claimant did not have 2 years’ continuous service; 1.5. The Respondents’ application to strike out all the claims on the grounds that they are vexatious or have no reasonable prospect of success (rule 37 of the Tribunal Procedure Rules 2013) or if not; 1.6. Whether the claims (or any one of them) has little reasonable prospect of success and the claimant should be required to pay a deposit (not exceeding £1000) as a condition of continuing with that claim/those claims (rule 39 Tribunal Procedure Rules 2013)

[2]There was a bundle of documents for this Open Preliminary Hearing (“Bundle 2”), and a previous bundle from an earlier Preliminary Hearing (Bundle 1”). Page references in these reasons are to pages in those Bundles 1 and 2 as appropriate.

[3]The Claimant submitted a witness statement, which I read. At a Case Management Preliminary Hearing in this case on 29 June 2020, EJ Henderson had originally listed this OPH (for 28 &29 October 2020) and had ordered the Claimant should prepare a witness statement explaining why she was unable to bring her claims in this case prior to 21 January 2020 and any other evidence she wished to give, but only where that evidence was relevant to the matters to be considered at the OPH (as set out above).

[4]The Respondent relied on a skeleton argument, with authorities, and both parties made oral submissions. The Claimant also relied on an authority which she sent to me at the start of the hearing. Background First Claim

Background

[5]On 29 May 2018, the Claimant had presented an earlier claim to the London Central ET against the same Respondents, case number 2204788/2018 (“the first claim”). In section 8.1, the Claimant ticked the ‘unfair dismissal’, ‘other payments’ and ‘another type of claim’ boxes (said to be a failure to pay tax and NIC in the first 4 months of employment). In section 8.2 the Claimant set out her narrative. That included an allegation that “Mrs Griffiths made degrading comments about me. She made comments which I consider to be racist in nature…”.

[6]On 21 August 2018, the Respondents wrote to the Tribunal, saying that the Claimant had issued claims “of unfair dismissal and taxation”. They said that the Claimant did not have the requisite service to bring a claim of unfair dismissal and that the Tribunal had no jurisdiction to consider a claim in respect of taxation. They asked that the Tribunal strike out both claims. 3 ph outcome jment and case mngmnt 1.5.14 version

[7]By a letter of 24 August 2018, the parties were informed that the ET had accepted “a claim for unpaid wages only”.

The Law

[8]The Claimant did not challenge that decision at the time. The Respondents defended the wages claim.

[10]EJ Welch conducted a case management hearing in the first claim on 3 October 2018. The record of it was sent to the parties on 4 October 2018.

Discussion

[11]The first paragraph of that record said, “The Claimant brings a claim for unlawful deductions from wages only under section 13 Employment Rights Act 1996.”

[12]Again, the Claimant did not write to the Tribunal challenging this, at the time.

[13]The first claim was heard on 28 November 2018 and 10 January 2019. In a Judgment dated 7 March 2019 the Claimant’s claim for failure to be paid the National Minimum Wage succeeded.

[14]The Claimant contends that the claims she had made in the first proceedings were ignored by the Tribunal. Second Claim

[15]By her claim form in this case, presented on 21 January 2020, the Claimant brought complaints of unfair dismissal, race discrimination, post employment harassment, detriment, failure to provide pay statements, failure to provide particulars of her employment and breach of contract, arising out of, and following her employment by the Respondents from 4 December 2017 until 2 May 2018. The Respondents defended this claim.

[17]The parties had not established a list of legal and factual issues before this hearing. It was necessary to establish the complaints in the second claim, and the dates of the relevant unlawful acts, before making any decision on strike out / deposit order in the second claim.

[18]In part 8 of the second claim ET1 the Claimant ticked boxes indicating that she was bringing claims of unfair dismissal, race discrimination and another claim/s as identified in her particulars of claim. The particulars of claim were in narrative form. In them, the Claimant complained of the Respondents’ conduct in defending the first claim and that the Respondents (particularly R2) have harassed the Claimant because she brought the 2018 claim.

[19]At paragraph 14 of the particulars of claim, the Claimant identified the complaints she was bringing arising out of the preceding paragraphs. She said: “Therefore I would like to bring claims of race discrimination, post-employment harassment, detriment, breach of contract for not paying NMLW and for deducting accommodation offset, implied terms and constructive dismissal for not paying me 4 ph outcome jment and case mngmnt 1.5.14 version correctly after I raised the pay issue several times. The Respondents did not give me payslips for the whole duration of my employment and the payslips do not reflect the actual payments. They didn’t use their legal names on the employment contract that I found in my possession. Mr Griffiths registered with the HMRC under a name that is not his legal name when the employer registration practice under Domestic Scheme was lax, but used his legal name when he signed a form with the intention of releasing him from the responsibility of minimum wage.”

[20]It therefore appeared that the Claimant had brought the following complaints: race discrimination, “post employment harassment, detriment”, “breach of contract for not paying NMLW and for deducting accommodation offset, implied terms”, “implied terms and constructive dismissal for not paying me correctly after I raised the pay issue several times”, “The Respondents did not give me payslips for the whole duration of my employment and the payslips do not reflect the actual payments”, “They didn’t use their legal names on the employment contract that I found in my possession..”

[21]On 15 April 2020 EJ Snelson ordered the Claimant to provide the further information sought by the Respondents at paragraph 9 of their grounds of resistance: of: 21.1. the protected characteristic relied upon by the Claimant in her discrimination claim; 21.2. the less favourable treatment of which she complains; 21.3. the protected act relied on by the Claimant; 21.4. the incidents of harassment complained of (including dates and persons responsible); 21.5. the basis upon which the claim for detriment was pursued and the detriments complained of (including dates); and 21.6. the basis upon which the claim for breach of contract was being pursued.

[22]The Claimant provided the further information requested in an 8 page document on 28 April 2020, second bundle pp 26 to 33. Further Information

[23]In her 28 April 2020 document, the Claimant confirmed that, in her race discrimination complaints, she relies on being a Kurd from Turkey, as her ethnic/national origin.

[24]She relies on the following less favourable treatment:a. Not providing a suitable children’s buggy during the Claimant’s employment and that her working environment was unsafe because the Respondents carried out building work to their home during her employment.

b. Ms Mareuge ’s treatment of the Claimant during her employment, in particular, calling the Claimant “£23,000” and “her birthday present” and limiting the food which the Claimant could eat, refusing to buy food and other provisions.

c. Making racist comments in the Claimant’s presence during her employment e.g. that the cleaner was aggressive because she was Polish. 5 ph outcome jment and case mngmnt 1.5.14 version

d. That Ms Mareuge encouraged the cleaner to be “aggressive and demanding” towards C.

e. A failure to pay C the agreed salary, providing payslips only after the Claimant’s employment had come to an end and which were inaccurate, failing to properly deduct taxes, maintaining at the Preliminary Hearing in relation to the 2018 claim that they had paid more than NMW, persisting with their defence of the 2018 claim in order to cause the Claimant “financial loss and psychological harm” and not paying the wages found to be owing to her.

f. Ms Mareuge referred to her nannies by their ethnicity during the Claimant’s employment. Lying to the Claimant about not having a spare key in order to avoid giving her a set of keys to the house and not giving the Claimant the pin number for a bank card used for the purposes of her job. The Claimant compares her treatment in this respect to a French au pair who started working for the Respondents shortly before the Claimant left her employment.

g. Not paying the Claimant the minimum wage, using the Claimant’s tax refund as part of her pay and failing to pay the tax due on her salary.

h. Putting pressure on the Claimant through their solicitors’ correspondence to her FRU representative withdraw the 2018 claim shortly before the final hearing began on 28th November 2018.

i. Contacting the Claimant’s former employers in order to obtain references about the Claimant and then using two of those references to damage the Claimant’s case during the 2018 proceedings.

j. Approaching the police about the Claimant and sharing one of the references obtained (the reference from the London Borough of Islington) with them in order to damage the Claimant by affecting her DBS certificate.

[25]The allegations under sub-paragraphs: a, c, d, f and g are not referred to in the second claim ET1. The Claimant has not sought permission to amend her claim to bring these complaints. Victimization Complaint

[26]At this hearing the Claimant told me that she was also bringing victimisation complaints.

[27]She pointed out that, in her second claim form , she had stated that, in the Respondents’ application dated 1 November 20119, in the first claim, they described her claim as having been for “unlawful deduction to wages, discrimination, unfair dismissal, racism…”. In the same paragraph, the Claimant alleged that the Respondents had contacted her previous employers to obtain references, had met the Claimant’s previous nanny employer and complained to the police after meeting them. In the following paragraph the Claimant said, “What is clear is that she used deceit to obtain post employment references about me and complained to the police about me six months after my employment ended and five months into the Employment Tribunal claim. She admits taking these actions because I brought a claim against them in relation to my pay and discrimination.”

[28]The Claimant told me that she relied on her first claim as her protected act in her victimisation claim. Having looked at the second claim, I decided that the Claimant 6 ph outcome jment and case mngmnt 1.5.14 version had brought a victimization claim, albeit that she had not used the label “victimisation.” Mr Wilson, for the Respondents, very fairly did not dispute this.

[29]The Claimant then clarified the unlawful acts she relied on in her victimisation claim. They were: 1. The Respondents contacting previous employers to obtain post employment references to use against the Claimant. She contends that this generated gossip about the Claimant and negatively affected her reputation. The Claimant contends that the Respondents obtained these references in about August 2018 and that she discovered that they had done this in October 2018. 2. The Respondents reporting the Claimant to the police and attempting to affect the Claimant’s DBS check. The Claimant says that she does not know when the Respondents reported her to the police. She discovered that they had done so on about 1 November 2019, when they revealed this in their application for reconsideration of a costs judgment in the first claim. 3. The Respondents contacting the Claimant’s previous nanny employers, assisting them in their Family Court child proceedings and undermining the Claimant in those proceedings and in influencing negatively those previous employers’ attitude to the Claimant. The Claimant said that this was ongoing. 4. The Respondents’ conduct of the first claim, including using the postemployment references they obtained.

[30]The Claimant confirmed that she also relied on these allegations as race harassment. Protected Detriment Complaint

[31]The Claimant said that she relied on her making safeguarding allegations against her previous employers to the relevant authorities as her protected act in her protected detriment claim.

[32]She said that the detriments she relied on in this complaint were the Respondents: 32.1. Reporting the claimant to the police; 32.2. Involving themselves in the previous employers’ family court proceedings, undermining the Claimant in those proceedings and influencing negatively those previous employers’ attitude to the Claimant. The Allegations in the Second Claim

[33]In summary, the Claimant’s factual and legal complaints in the second claim were: 33.1. Unfair dismissal 33.2. Breach of Contract in relation to failure to pay NMW 33.3. Failure to provide payslips 33.4. Failure to provide the Claimant with accurate conditions of employment. 33.5. Race discrimination during her employment 4 December 2017 - 2 May 2018. 33.6. The Respondents contacting previous employers to obtain post employment references to use against the Claimant. She contends that 7 ph outcome jment and case mngmnt 1.5.14 version this generated gossip about the Claimant and negatively affected her reputation: relied on as victimization and race harassment 33.7. The Respondents reporting the Claimant to the police and attempting to affect the Claimant’s DBS check: relied on as victimization, race harassment and protected disclosure detriment 33.8. The Respondents contacting the Claimant’s previous nanny employers, assisting them in their Family Court child proceedings and undermining the Claimant in those proceedings and in influencing negatively those previous employers’ attitude to the Claimant: relied on as victimization, race discrimination/harassment and protected disclosure detriment 33.9. The Respondents’ conduct of the first claim, including using the postemployment references they obtained: relied on as victimization and race harassment. The Claimant’s Position

[34]The Claimant told me that, in relation to the first claim, she just followed what she was told by the Tribunal. She said that she had been told by the previous judge that she could not refer to anything other than her wages claim. The Claimant said that, later during the first claim, she did consult the Citizen’s Advice Bureau and solicitors, but that they did not tell her she could bring other claims The Claimant said that the only advice she obtained from solicitors during the first proceedings concerned disclosure of documents.

[35]I asked the Claimant why she had not written to the Tribunal in the first proceedings to say that she wanted to bring other types of claim. The Claimant said that she had not been advised to – her advisors had not given her much help.

[36]The Claimant said that it had taken a long time to deal with the issue of the references - Ms Mareuge had duped her previous employers into providing them. The Claimant said that she might want to go back to those organizations for work and that she had been gossiped about as a result of Ms Mareuge’s actions in trying to extract references from the Claimant’s former employers. She said that she did not know the future implications of Ms Mareuge’s actions.

[37]The Claimant said that, while she knew of the existence of the references in 2018, she did not know that it was possible to bring a victimization claim until much later: when she read about it in a Legal Action Group book.

[38]The Claimant said that she believed that all the Respondents’ actions towards her had been influenced by her nationality. She said that they had advertised for a French or Spanish nanny, offering higher pay. She said that the Respondents had employed a Spanish nanny after the Claimant and had treated that nanny more favourably, buying a new buggy and providing her with keys and a bank card. The Claimant said that the Respondents had made derogatory comments about different nationalities.

[39]The Claimant also told me that the Respondents had reported her to the police at least 4 times, but she did not know when. The Claimant said that she had found out about the Respondents reporting her to the police for the first time during the 8 ph outcome jment and case mngmnt 1.5.14 version Respondents’ reconsideration application and appeal in the first claim. She said that the Respondents wanted to affect her DBS report.

[40]The Respondents agreed that the first time the Claimant could have known that the Respondents had gone to the police about her was on 1 November 2019 and that she had brought her second claim within 3 months of that date.

[41]I asked the Claimant, regarding her unfair dismissal claim, what was the reason she resigned. She said that the Respondents had not paid her the salary they had promised. She also said that the Respondents’ house was a hazardous place and she did not want to continue living there. The Claimant did not say that she had complained about the hazardous nature of the house, or that she had taken any other action in relation to it. Law - Res judicata; Henderson v Henderson

[42]In Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd

[2013] 4 All ER 715

, the Supreme Court summarised the law relating to res judicata at paragraphs [17]-[19].

[43]At [17] Lord Sumption, giving the judgment of the Court, said, “Res judicata is a portmanteau term which is used to describe a number of different legal principles with different juridical origins. … The first principle is that once a cause of action has been held to exist or not to exist, that outcome may not be challenged by either party in subsequent proceedings. This is ‘cause of action estoppel’. It is properly described as a form of estoppel precluding a party from challenging the same cause of action in subsequent proceedings. Secondly, there is the principle, which is not easily described as a species of estoppel, that where the claimant succeeded in the first action and does not challenge the outcome, he may not bring a second action on the same cause of action, for example to recover further damages: see Conquer v Boot

[1928] 2 KB 336

, [1928] All ER Rep 120. Third, there is the doctrine of merger, which treats a cause of action as extinguished once judgment has been given upon it, and the claimant’s sole right as being a right upon the judgment. ……. Fourth, there is the principle that even where the cause of action is not the same in the later action as it was in the earlier one, some issue which is necessarily common to both was decided on the earlier occasion and is binding on the parties: Duchess of Kingston’s Case (1776) 20 St Tr 355, [1775–1802] All ER Rep 623. ‘Issue estoppel’ was the expression devised to describe this principle by Higgins J in Hoystead v Taxation Comr

(1921) 29 CLR 537

at 561 and adopted by Diplock LJ in Thoday v Thoday

[1964] 1 All ER 341

at 352,

[1964] P 181

at 197–198. Fifth, there is the principle first formulated by Wigram V-C in Henderson v Henderson (1843) 3 Hare 100 at 115, [1843–60] All ER Rep 378 at 381–382, which precludes a party from raising in subsequent proceedings matters which were not, but could and should have been raised in the earlier ones. Finally, there is the more general procedural rule against abusive proceedings, which may be regarded as the policy underlying all of the above principles with the possible exception of the doctrine of merger.” 9 ph outcome jment and case mngmnt 1.5.14 version

[44]At paragraph [18], Lord Sumption said, of the Henderson v Henderson principle, 45. …where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case.”

[46]However, it is not the case that, just because a Claimant could have brought claims forward in an earlier claim, the rule in Henderson v Henderson automatically applies to prevent the Claimant from bringing forward these claims later.

[47]In Johnson v Gore Wood & Co.

[2002] 2 AC 1

(HL) (quoted in Virgin Atlantic v Zodiac at paragraph 24 page 731 e-f) Lord Bingham set out the approach which should be taken” “It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not … While the result may often be the same, it is in my view preferable to ask whether in all the circumstances a party’s conduct is an abuse than to ask whether the conduct is an abuse and then, if it is, to ask whether the abuse is excused or justified by special circumstances.” Decision: Issue Estoppel – Breach of Contract Claim

[48]Applying the law to the facts of these claims, I considered that the breach of contract claim, for not paying NMW and for deducting the accommodation offset relating to the NMW in the current claim, were aspects of the first claim.

[49]The 2018 claim was accepted as a claim for unpaid wages. It was expressed as a claim that the Respondents had acted in breach of contract by not paying tax and national insurance on the Claimant’s wages.

[50]The claim was heard over two days on 28th November 2018 and 10th January 2019 by EJ Walker.

[51]A worker’s right to payment of the NMW arises by way of an implied term in the worker’s contract of employment under s17 NMWA 1998 so that, if a worker is paid less than the NMW, they are entitled under their contract of employment to the 10 ph outcome jment and case mngmnt 1.5.14 version difference between their actual wages and the NMW. The claim for underpayment of NMW can proceed as an unlawful deduction from wages claim under s13 ERA 1996 or as a breach of contract claim.

[52]The Respondents’ case in the first claim was that the family exception in Regulation 57 NMW Regulations 2015, so that the Claimant was not entitled to be paid the NMW. The Tribunal found that the Claimant was not treated as a member of the family, so that the exception did not apply, and the Claimant was therefore entitled to be paid NMW.

[53]The Tribunal found that the Claimant had been underpaid by £269.90.

[54]I decided that the judgment in the first claim therefore gave rise to issue estoppel in relation to the Claimant’s claim for breach of contract for failing to pay NMW. The facts of the first claim were the same as the facts on which the Claimant now relies in the second claim. While the cause of action is not the same in the second claim as it was in the first, the factual issues in relation to alleged underpayment of NMW are common to both claims and were decided in the first claim. That decision is binding on the parties and cannot be relitigated in new proceedings.

[55]The Claimant cannot bring a second claim in these proceedings in relation to a breach of contract/ unlawful deductions from wages by way of failure to pay NMW. Decision – Henderson v Henderson: complaints of unfair dismissal, failure to provide pay statements, failure to provide accurate particulars of employment, breach of contract, and race discrimination in relation to acts done during employment from 4 December 2017 until 2 May 2018

[56]The Claimant’s first claim ticked the boxes, unfair dismissal, “other payments” and indicated that the Claimant was also making another type of claim.

[57]In section 8.2 of her first ET1, she set out the details of her claim, including complaints about her working conditions “lack of paying taxes and the correct insurance contributions” and the Respondents making “comments which I consider to be racist in nature”.

[58]It appeared that this paragraph explained her resignation “which led me to give them my notice early April”.

[59]Therefore, from the outset of the 2018 claim, the Claimant had been complaining, not only about the Respondents’ failure to pay her wages, but also about the treatment she had received from the Respondents during her employment. Nevertheless, the Claimant had not ticked the box “race discrimination” in her claim form. It seemed to me that the Claimant’s first claim put forward a constructive dismissal claim and a claim that the Claimant had not been paid properly during her employment.

[60]The Tribunal accepted the claim as an unlawful deduction from wages claim only. It is not clear why it did not accept the unfair dismissal claim, although this may have been because it was clear that the Claimant did not have sufficient qualifying 11 ph outcome jment and case mngmnt 1.5.14 version service to bring an ordinary unfair dismissal claim and she had not asserted an automatic unfair dismissal claim.

[61]I considered that, at the time the Claimant submitted her first claim, she clearly knew of the facts which gave rise to the race discrimination claims during employment from 4 December 2017 until 2 May 2018, failure to provide payslips and failure to provide accurate written conditions of employment.

[62]She did not tell me that she only became aware of these matters later. Regarding the facts of the race discrimination allegations, she must have known about those matters when they occurred. Likewise, the Claimant must have known whether or not she received pay statements. She should also have read her contract during her employment, and noted whether or not it was accurate.

[63]She could have brought all these claims in the first proceedings. She failed to do so.

[64]I acknowledged that the Claimant had tried to bring her unfair claim in the first proceedings and that that claim was not accepted, without a reason being given. However, the Claimant never challenged that decision, or pursued the unfair dismissal claim.

[65]The Claimant was told by the Tribunal on 24 August 2018 that the 2018 claim had been accepted as a claim for unpaid wages only. A Preliminary Hearing took place on 3 October 2018. The PH considered the issues in the unlawful deductions claim. The Case Management Summary sent to the parties prompted the parties to return to the Tribunal if they did not agree with the summary of the claim.

[66]The Claimant took advice from the Citizen’s Advice Bureau and from solicitors during the first claim, but did not re- assert her unfair dismissal claim, nor appeal against the decision not to accept it. The Claimant also had advice from the Free Representation Unit. She received advice relating to her first claim on many occasions.

[67]On the first day of the Final Hearing, the Claimant produced a long letter raising a number of matters and gave that to Judge Walker. The judgment on the 2018 claim records that she decided to proceed with the claim as an unlawful deduction claim alone, rather than cause the Tribunal to look at any of the matters raised in the letter.

[68]Applying the “broad, merits-based” judgment required in Johnson v Gore Wood & Co.

[2002] 2 AC 1

, I considered that the Claimant had had ample opportunity, in her first claim, to bring her complaints of unfair dismissal, failure to provide pay statements, failure to provide accurate particulars of employment, breach of contract, and race discrimination in relation to acts done during employment from 4 December 2017 until 2 May 2018.

[69]She failed to bring them, or to pursue them. She had plentiful opportunities to take legal advice during that first claim. There was no good reason, now, for allowing her to advance those claims. I considered that it was an abuse of the Tribunal process for the Claimant to attempt to litigate those claims when she could easily 12 ph outcome jment and case mngmnt 1.5.14 version have done so in the first proceedings. In any event, they were now being pursued long after the 3 month limitation period. It would be unjust to the Respondents to require them to meet a case which the Claimant had failed to advance at an earlier stage, despite knowing the facts which gave rise to them. Claims out of Time - complaints of unfair dismissal, failure to provide pay statements, failure to provide accurate particulars of employment, breach of contract, and race discrimination in relation to acts done during employment from 4 December 2017 until 2 May 2018. Claims relating to references

[70]In any event, all these claims, and the Claimant’s claims relating to the Respondents’ seeking references after the Claimant’s employment ended, were brought very much out of time. The Claimant’s employment ended on 2 May 2018. She knew about the Respondents obtaining references in August 2018. She did not bring the claims until 21 January 2020, at least 16 months later. That was well outside the 3 month time limit for bringing claims.

[71]It was clearly reasonably practicable for the Claimant to have brought the claims earlier – she knew the facts of the claims and she knew of her right to bring claims. She brought other timeous claims to the Tribunal on 29 May 2018.

[72]It was not just and equitable to extend time for the discrimination complaints. The Claimant had not shown any reason why time should be extended. Judicial Proceedings Immunity

[73]Judicial proceedings immunity is the principle of immunity from suit in respect of things said or done in the course of judicial proceedings.

[74]In South London & Maudsley NHS Trust v Dathi

[2008] IRLR 350

the Employment Appeal Tribunal (“EAT”) set out the rules relating to absolute immunity. At paragraph 17 of the judgment HHJ McMullen stated: “The rules relating to absolute immunity for legal proceedings were restated by Devlin LJ in Lincoln v Daniels

[1962] 1 QB 237

at 258, where he said this: ‘The absolute privilege which covers proceedings in or before a court of justice can be divided into three categories. The first category covers all matters that are done coram judice . This extends to everything that is said in the course of proceedings by judges, parties, counsel and witnesses, and includes the contents of documents put in as evidence. The second covers everything that is done from the inception of the proceedings onwards and extends to all pleadings and other documents brought into existence for the purpose of the proceedings and starting with the writ or other document which institutes the proceedings. The third category is the most difficult of the three to define. It is based on the authority of Watson v M’Ewen, in which the House of Lords held that the privilege attaching to evidence which a witness gives coram judice extended to the prerecognition or proof of that evidence taken by a solicitor. It is immaterial whether the proof is or is not taken in the course of proceedings. In Beresford v White, the privilege was held to attach to what was said in the course of an interview by a solicitor with the person who 13 ph outcome jment and case mngmnt 1.5.14 version might or might not be in a position to be a witness on behalf of his client in contemplated proceedings.’…

[75]In Dathi the Claimant succeeded in her first claim of race and or religious discrimination against the South London and Maudsley NHS Trust. The following year, she presented a second claim alleging discrimination and victimisation based on two letters written to her solicitors by the Trust’s representatives in the first proceedings. In one of the letters, the Trust had refused to disclose documents in relation to the investigation of Mrs Dathi’s grievance . Mrs Dathi argued that, by doing so, the Trust was deliberately refusing to disclose interviews with witnesses who supported her case. In the other letter, the Trust’s representatives made various representations in opposition to an application for costs made by Mrs Dathi’s solicitors. Mrs Dathi complained that various points made in that letter amounted to race and or religious discrimination, or victimisation.

[76]The EAT held that both letters fell into the second category identified in Lincoln v Daniels and that the Tribunal therefore had no jurisdiction to hear the second claim because the letters were subject to absolute immunity.

[77]As explained in Nicholls v Corin Tech Ltd

UKEAT/0290/07

(4 March 2008, unreported) and Aston v The Martlet Group Limited

UKEAT/0274/18

(21 May 2019, unreported), matters that are an 'integral part' of the judicial process attract the judicial proceedings immunity. Decision : Judicial Proceedings Immunity - The References

[78]Ms Mareuge obtained 6 references and then relied on two of the references in the 2018 first claim. The relevant correspondence was: 78.1. Bundle 1, p119 A letter or statement provided by Dr Anxo Cereijo. 78.2. Bundle 1, p120-1 Reference provided by Islington Council on 23rd August 2018 following a request on the 8th August 78.3. Bundle 1, p 123 E-mail confirming that no reference had been provided to Ms Mareuge by Family Action 78.4. Bundle 1, p 122-5 E-mail confirming that no reference was given to Ms Mareuge by the Maya Centre 78.5. Bundle 1, p126-7 E-mails confirming that a reference was given by IMECE Women’s Centre to Ms Mareuge on 10th August 2018 following a request on 8th August 2018 78.6. Bundle 1, pp128-131 E-mails confirming that a reference was provided to Ms Mareuge on 9th August 2018 by the Derman organisation following a request made on 8th August

[79]The letter from Dr Cereijo and the Islington reference were included in the hearing bundle for the first claim.

[80]I decided that they fell within the first category identified in Lincoln v Daniels, as they were documents put in evidence in the presence of the Judge. 14 ph outcome jment and case mngmnt 1.5.14 version

[81]The other four reference requests fell within the second category identified in Lincoln v Daniels. The reference requests were brought into existence for the purpose of the first proceedings.

[82]There can be no doubt that the references were documents put in evidence in the presence of the judge. A preparation time order of £507 was made in the Claimant’s favour against the Respondents because of Ms Mareuge’s conduct in applying for the references by EJ Walker in the costs/PTO hearing heard on 8th August and 3rd October 2019. The references were therefore considered in the course of that hearing and were clearly in the presence of the judge.

[83]Complaints based on the collection and use of references during the first claim are clearly barred by judicial proceedings immunity. Decision: Judicial Proceedings Immunity - Conduct of the First Claim

[84]The Claimant also makes allegations about the Respondents’ conduct of the first claim, including allegations of putting the Claimant under pressure by threatening her with costs orders and putting her FRU representative under pressure by suggesting that her claim did not have merit and should be withdrawn.

[85]These acts also fall into the first or second category in Lincoln v Daniels. They were done following the inception of the 2018 claim and were either in Tribunal and coram judice (the first category), or were done in writing in the course of the proceedings and were therefore “documents brought into existence for the purpose of the proceedings” (the second category). Claims in relation to these acts are barred by absolute immunity. Decision: Judicial Proceedings Immunity – Family law Proceedings

[86]The Claimant also wishes to bring complaints based on the Respondents’ assistance of the Claimant’s former nanny employers in their family court proceedings, and their undermining of the Claimant in relation to those proceedings.

[87]Again, such actions are in the first category of things in Lincoln v Daniels. They relate to things said in the course of proceedings by the parties (the previous nanny employers) and witnesses (the Respondents), and/or they include the contents of documents put in as evidence in those proceedings by the Respondents.

[88]The Tribunal has no jurisdiction to hear complaints based on the Respondents’ involvement in the family law proceedings. Unfair Dismissal Law – Qualifying Service

[89]By s108 Employment Rights Act 1996, in order to have the right to bring a complaint of unfair dismissal under s94 ERA 1996, an employee must have been continuously employed for 2 years or more ending with the effective date of termination. This qualifying period does not apply in cases of automatic unfair dismissal. 15 ph outcome jment and case mngmnt 1.5.14 version Decision – Unfair Dismissal Claim

[90]The Claimant brings only a claim for ordinary unfair dismissal. She does not have the right to bring such a claim because she was employed for less than 2 years, from 4 December 2017 until 2 May 2018.

[91]Her unfair dismissal claim must be dismissed. Law - Strike Out – No Reasonable Prospects of Success

[92]An Employment Judge also has power to strike out a claim on the ground that it is scandalous, vexatious or has no reasonable prospect of success under Employment Tribunal Rules of Procedure 2013, Rule 37(1)(a).

[93]The power to strike out a claim on the ground that it has no reasonable prospect of success may be exercised only in rare circumstances, Teeside Public Transport Company Limited (T/a Travel Dundee) v Riley

[2012] CSIH 46

, at 30 and Balls v Downham Market High School & College

[2011] IRLR 217

EAT. In that case Lady Smith said: “The Tribunal must first consider whether, on a careful consideration of all the available material, it can properly conclude that the claim has no reasonable prospects of success. I stress the word ‘no’ because it shows that the test is not whether the Claimant’s claim is likely to fail nor is it a matter of asking whether it is possible that his claim will fail. Nor is it a test which can be satisfied by considering what is put forward by the Respondent either in the ET3 or in submissions and deciding whether their written or oral recessions regarding disputed matters are likely to be established as facts. It is, in short, a high test. There must be no reasonable prospect”.

[94]A case should not be struck out on the grounds of having no reasonable prospect of success where there are relevant issues of fact to be determined, A v B

[2011] EWCA Civ 1378

, North Glamorgan NHS Trust v Ezsias,

[2007] ICR 1126

; Tayside Public Transport Co Ltd (t/a Travel Dundee) v Reilly

[2012] CSIH 46

. J.

[95]Discrimination cases should only be struck out in the very clearest circumstances, Anyanwu v Southbank Student’s Union

[2001] IRLR 305

House of Lords.

[96]In order for a disadvantage to qualify as a “detriment”, it must arise in the employment field, in that ET must find that by reason of the act or acts complained of a reasonable worker would or might take the view that he had thereby been disadvantaged in the circumstances in which he had thereafter to work. An unjustified sense of grievance cannot amount to “detriment”. However, to establish a detriment, it is not necessary to demonstrate some physical or economic consequence, Shamoon v Chief Constable of RUC

[2003] UKHL 11

. Decision: Strike Out: Influencing negatively previous nanny employers’ attitude to the Claimant: relied on as victimization, race harassment and protected disclosure detriment

[97]I considered that the allegation that the Respondents had negatively influenced her previous employers’ attitude to the Claimant, relied on as victimization, race 16 ph outcome jment and case mngmnt 1.5.14 version harassment and protected disclosure detriment, had no reasonable prospect of success.

[98]The fact that other people had a negative view of the Claimant could not amount to a detriment, for the purposes of victimization and protected disclosure detriment claims, if those other people were not involved in a current or prospective employment relationship with the Claimant, as colleagues or employers, or did not have influence over such future employment.

[99]The Claimant did not suggest that she would be applying for re-employment by these nanny employers. It would be inconceivable that she would, given her involvement in family court proceedings against them. (It was not in dispute that she had reported them to child welfare authorities).

[100]Shamoon v Chief Constable of RUC

[2003] UKHL 11

made clear that the disadvantage which constituted a detriment had to be linked to a current or future workplace – the worker must reasonably take the view that he has been “disadvantaged in the circumstances in which he had thereafter to work”. The detriment relied on by the Claimant, which was a general negative view held by third parties, not related to a current or future employment, could not constitute a detriment as described in Shamoon. The victimization and protected disclosure detriment claims on these facts should be struck out.

[101]Regarding race harassment, I considered that there was no reasonable prospect of success in relation to an allegation that a third party had been influenced to a negative view of the Claimant.

[102]There was no reasonable prospect of such conduct being found to have have the purpose or effect of—(i) violating B's dignity, or

(ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

[103]There was no workplace “environment” where the conduct could operate. I considered that a third party was so removed from proximity to the Claimant that, whatever their view of the Claimant, this could not “violate ….. dignity”. The Claimant’s complaints of race discrimination, race harassment, victimisation and protected disclosure detriment regarding the Respondents reporting the Claimant to the police

[104]The Claimant does not know when the Respondents reported her to the police. She alleges that they did so in order to negatively influence her DSB status, which would affect her ability to work with children.

[105]It was agreed that the Claimant first became aware that the Respondents had done this, at the earliest, on 1 November 2019. She presented her claim in relation to these allegations on 21 January 2021. The Respondents do not dispute that her claim in respect of the Respondents reporting her to the police is, therefore, in time.

[106]I agreed and decided that this complaint was presented in time, on those facts. Alternatively, that it was not reasonably practicable for the complaint to be 17 ph outcome jment and case mngmnt 1.5.14 version presented and it was presented within a reasonable time thereafter. It was also just and equitable to extend time for the complaint. It was presented well inside a 3 month period after the Claimant’s date of knowledge.

[107]I considered that the Claimant’s complaints of race discrimination, race harassment, victimisation and protected disclosure detriment regarding the Respondents reporting the Claimant to the police had reasonable prospects of success. I did not strike them out, nor make them subject to a deposit order.

[108]I considered that the Claimant had reasonable prospects of success in establishing that she had done a protected act. The Respondents stated, in their documents in the first claim, that the Claimant had made allegations of race discrimination against them. They therefore believed that she had done a protected act.

[109]Further, the Claimant had reasonable prospects of success in establishing that she had made a protected disclosure. She had reported her previous employers to child welfare authorities. That disclosure could come within s43B ERA 1996 and s43F or s43G or 43H ERA 1996.

[110]I considered that, on the basis of the Claimant’s description of less favourable treatment of her on the grounds of race, during her employment, there were reasonable prospects of the Tribunal deciding that the Respondents’ report to the police was at least partly because of the Claimant’ s race.

[111]Further, I considered that a report to the police, for the purposes of negatively influencing a DBS check, did have a sufficiently close nexus to employment to constitute a detriment, or to amount to harassment. It could prevent the Claimant from securing employment elsewhere. It was analogous to providing a poor reference.

Conclusion

[112]The Tribunal does not have jurisdiction to hear the Claimant’s complaint of breach of contract because it is barred by issue estoppel;

[113]Applying the rule in Henderson v Henderson, the Claimant should, in her first claim, have raised her complaints of unfair dismissal, failure to provide pay statements, failure to provide particulars of her employment, breach of contract and race discrimination in relation to acts done during her employment from 4 December 2017 until 2 May 2018. Her doing so in this claim constitutes an abuse of process, so these claims are struck out;

[114]In any event, the unfair dismissal, failure to provide pay statements, failure to provide particulars of her employment and breach of contract claims and race discrimination in relation to acts done during her employment from 4 December 2017 until 2 May 2018 were presented out of time. Time is not extended for them. The Tribunal has no jurisdiction to consider them. 18 ph outcome jment and case mngmnt 1.5.14 version

[115]The Claimant does not have the requisite service to bring a complaint of unfair dismissal. There was no complaint of auto unfair dismissal. The claim of unfair dismissal is dismissed.

[116]The Claimant’s complaints of race discrimination, victimization and race harassment, in relation post employment obtaining references are barred by judicial proceedings immunity. Further, the Tribunal does not have jurisdiction to consider them because they were presented out and are out of time and it is not just and equitable to extend time for them. They are struck out.

[117]The Claimant’s complaints of victimization, race harassment and protected disclosure detriment in relation to the Respondents’ involvement in other family court proceedings are barred by judicial proceedings immunity. They are struck out;

[118]The Claimant’s complaints in relation to the Respondents’ conduct of her first claim 2204788/2018 barred by judicial proceedings immunity;

[119]The Claimant’s complaints of the Respondents negatively influencing her previous nanny employer, relied on as race discrimination, post employment harassment, and protected disclosure detriment, are struck out because they have no reasonable prospects of success

[120]The Claimant’s complaints of race discrimination, race harassment, victimisation and protected disclosure detriment regarding the Respondents reporting the Claimant to the police were either presented in time, or it was not reasonably practicable for them to be presented in time and they were presented within a reasonable time thereafter, or it is just and equitable to extend time for them.

[121]The Claimant’s complaints of race discrimination, race harassment, victimisation and protected disclosure detriment regarding the Respondents reporting the Claimant to the police are not struck out, nor made subject to a deposit order.

[122]All the Claimant’s claims are therefore struck out EXCEPT her complaints of race discrimination, race harassment, victimisation and protected disclosure detriment regarding the Respondents reporting the Claimant to the police

[123]I gave directions for the further conduct of the surviving claim in a case management hearing. 19 ph outcome jment and case mngmnt 1.5.14 version

Conclusion

[1]The Claimant (C) is Kurdish, born in Turkey, and a British citizen. She brought various claims based on alleged acts by her previous employers, the Respondents (Rs) (who I shall refer to as MG and SG), for whom she worked as a live-in nanny for about five months ending with her resignation with effect from early May 2018.

Evidence

[2]We had two bundles of documents, which for convenience we referred to at the hearing as the Respondents’ and the Claimant’s bundles.

[3]We had witness statements and heard live oral evidence from: 3.1.the Claimant; 3.2.Mrs Griffiths. Procedural matters

[4]At the outset of the hearing, C raised the fact that she had recently applied for witness orders, which had been refused. C explained that the witnesses she had wanted to be ordered to attend could, she hoped, refute assertions made in MG’s witness statement concerning factual details about C’s employment history before she worked for Rs.

[5]The tribunal explained that:(a) it was most unlikely that those factual matters would need to be considered and determined by us in order to adjudicate the issues we had to resolve (see below);

(b) it was in any event in practice almost impossible to ensure witness attendance under order over the first two or three days of the hearing (the intention was to conclude the evidence by the end of the second day). Litigation background and the issues that required determination

[6]It is even more than usually important in this case to explain the litigation background and to identify by reference to that, what the issues are (and what they are not) which required determination by us. - 2 -

[7]On 29 May 2018 C issued the ‘First Claim’ against Rs. She ticked the boxes on the ET1 for unfair dismissal and relating to money owed in respect of her wages. In the ‘details of complaint’ section, C described her employment as the ‘hardest’ including being subject to MG making ‘degrading comments about me. She made comments which I consider to be racist in nature’. C alleged that MG had been ‘very demanding, extremely controlling and manipulative in all aspects of my life during my employment.’ After addressing the narrowly financial aspects of her claim, C also asserted that she had been ‘deceived and exploited … not too far off from a type of slavery.’

[8]In the event (for reasons that are not relevant here), the only claim that was listed and determined was in relation to whether C had been paid the national minimum wage. Importantly, there was no substantive determination of any claim under the Equality Act.

[9]C succeeded in her claim that she had not been paid the national minimum wage, being awarded just under £300. Subsequently, C obtained a modest award of costs on the basis that Rs had conducted themselves unreasonably in their conduct of the litigation by obtaining ‘references’ about C during the litigation on the false basis (at least implied) that Rs were thinking of employing her, in order to use the information obtained to discredit C during the litigation.

[10]There were various applications made by the parties for reconsideration of the tribunal judgments and applications to appeal those judgments. Of these the relevant one for present purposes is an application on behalf of Rs made on 1 November 2019 to the tribunal to reconsider its judgment awarding C some costs. As part of that document the following statements were made: “The respondents feared that perhaps things had been mis-conveyed to them during the recruitment process and their only concern was for the safety of their children. They talked to the Police who confirmed that their concerns were legitimate and they needed to put safeguarding measures in place for their children”.

[11]C presented the present claim on 21 January 2020. The ET1 said claims were being made of unfair dismissal, race discrimination and other claim(s). The particulars of claim set out in considerable detail allegations about the period of her employment - 3 - with Rs and about behaviour of Rs during the litigation of the First Claim and more generally following the termination of C’s employment with Rs in May 2018.

[12]Included amongst those allegations was that MG had ‘complained’ to the police about C and had (MG had said) been told by the police that they would have advised Rs not to employ C had they been asked about that before Rs did in fact decide to employ her.

[13]It is very important to emphasise that at a contested OPH on 10 June 2021 the tribunal decided that it did not have jurisdiction to hear (and therefore struck out) all claims except C’s complaints of race discrimination, harassment, victimisation and protected disclosure detriment regarding Rs reporting C to the police.

[14]At a further case management PH on 22 July 2021 a List of Issues was determined. In respect of each legal ground of complaint (discrimination, harassment, victimisation and protected disclosure detriment), the detriment/treatment complained of was defined as being “The respondents reported the claimant to the police on up to four occasions for the purpose of or with the result of negatively influencing any DBS check carried out in relation to her, the first report being on 7 August 2018, being the date the respondents were notified that the claimant was bringing a claim against them in relation to the minimum wage and other matters”.

[15]It is common ground that, in effect, C was permitted to amend the present claim to add complaints about MG reporting her to the police on occasions during 2020 which post-dated the ET1 form.

[16]However, the majority of the evidence (documentary and witness statements) produced by both parties to the tribunal, was not directly relevant to the claims identified as proceeding by the tribunal on 10 June 2021 and as clarified in the List of Issues on 22 July 2021. Instead, both parties attempted by their evidence to demonstrate in as much detail as they could muster the supposed unreliability and bad faith of the other party. It could be said, in theory, that some of that evidence would be potentially relevant to issues of credibility which might assist the tribunal in resolving the actual claims before it. However, C’s credibility was barely relevant if at all to those claims; and as to MG’s credibility, in practice those claims turned solely on: - 4 - 16.1. The content of communications between MG and the police which were either contemporaneously documented and/or in respect of which there was little or no dispute; and 16.2. The subjective reasons in MG’s mind for making those communications, which were either obvious from the content and context of the communications, or could be inferred from that content and context.

[17]Put shortly, the large majority of the evidence of the parties was not relevant to the claims/issues we had to determine.

Facts

[18]We confine our factual findings to those matters that are relevant to our determinations.

[19]C worked as Rs’ live-in nanny, looking after their (then) two very young children between 4/12/17 and 2/5/18 (returning, as requested by Rs, for two further days in May about a week later).

[20]Before the appointment was agreed, C provided Rs with a written CV. She told Rs that because of the circumstances of her leaving her last employment as a nanny for Mr X and his partner she could not get a reference from them. Rs accepted that explanation at the time and did not seek any other references. C also showed Rs a current DBS Certificate; Rs did not request a copy and C did not offer one.

[21]During the period of her employment Rs believed that it was going well, based on their interactions with C, on their observation of the good relationships C built with their two children, and on the basis of the friendly tone of their communications with C, including a substantial record of written WhatsApp messages which were in the tribunal bundle.

[22]C, however, harboured concerns and resentments against some of Rs’ behaviour and speech to her, as graphically demonstrated by a further set of WhatsApp messages between C and her niece. C told us that she believed Rs would have been to some extent aware of her discontent at the time, though accepted that she had generally acted and spoken with kindness, not wanting to invite confrontation. - 5 -

[23]We accepted MG’s evidence, supported by all the written documents both during and immediately after the appointment ended, that she and SG had no idea that C felt that they had not treated her well. Amongst other things, the tone of the WhatsApp messages around early May 2018, the fact that Rs asked C to return to look after their children for two days after her resignation had taken effect, the fact that they invited her to stay in touch with the children (which would have necessarily been through Rs, given the age of the children), and the fact that Rs recommended C to a friend, all pointed to that obvious conclusion.

[24]As set out above, not long after the employment ended, C put in the First Claim, making the most serious allegations about Rs’ treatment of her throughout that employment. Although most of those allegations have never been substantively adjudicated (and we make no finding as to whether any of them was accurate), Rs were unsurprisingly shocked and hurt when they found out (on about 2 August 2018, on receipt of the claim) that they had been made, and that their impression of their relationship with C had been so different from the way C described it in the First Claim.

[25]MG reacted in part by pursuing various inquiries about C. Those fell into two categories (at least in so far as was in evidence before us).

[26]First, as set out above, she sought to obtain ‘references’ from those listed in C’s CV as her former employers and educational establishments. These are not directly relevant to this claim, but the following matters are of some significance: 26.1. MG was able, with some effort, to make contact with C’s last employers, Mr X and his partner. Mr X told MG, on or perhaps just before confirming it in an email dated 23/9/18 from Mr X to MG, that his experience of C had been a bad one, including that C had without good reason reported them in 2017 to social services for potential child abuse. C told us she had made a report to the NSPCC, who themselves contacted social services, and that she did so for good reason. We do not need to make and do not make any finding on that point. C’s report to either NSPCC or Social Services is the protected disclosure relied on by C in this claim. - 6 - 26.2. MG believed she had discovered at least two further anomalies in C’s CV. C denies there were any false statements made in the CV she provided to Rs. We do not need to and do not make any findings on that point.

[27]Secondly, MG called the police in probably late August 2018. The content of that call (or calls, MG could not be sure whether there had been a single call or whether she had been called back in response to her initial call) is important. We only have MG’s evidence on this matter, which we accept. MG dialled the police on the nonurgent line. She asked whether it was possible for her to confirm the status of an exemployee’s DBS Certificate and was told it was not. MG then told the police that the person she was concerned about was C and she had reason to be doubtful whether C had in fact been an appropriate person to look after her children. Either in that call or in a subsequent call, the police told MG that in effect there was some question mark over C and that had MG contacted them before employing C to look after their children, they would have advised against it. The tribunal observes that we are surprised and concerned that the police would offer such ‘advice’ in that informal and unevidenced way.

[28]As set out above, C only found out about this contact with the police on 1 November 2019 and put in the present claim on 21 January 2020, complaining inter alia about that.

[29]On about 15 January 2020, C set up a website, on which she posted various material, including about child abuse, as well as about the litigation between herself and Rs (including links to the public documents in that litigation). Different posts were put up and taken down at various times. C said that the purpose of posts in relation to Rs was to protect herself against the false allegations Rs had made against her. C ensured that the full names of both Rs (in MG’s case, her maiden name, which she still used and still uses where that is convenient, for instance in some professional contexts) appeared multiple times on the website. The full names of each Respondent (Melanie Mareuge-Lejeune and Stephen Derwent Griffiths) are unusual if not unique. This meant that anybody doing an internet search of those names would be immediately directed to C’s website. It is difficult to resist the inference that this was C’s intention. - 7 -

[30]MG found out about the website shortly after it was created, when searching on her own name. She and SG were very concerned that third parties, who might be expected to search the internet against their names, eg if considering employing one of them, would find themselves directed to C’s website and associated with postings about child abuse and the ongoing and increasingly bitter litigation.

[31]On about 19 February 2020, MG contacted the police to raise concerns that C had made false statements in the CV she supplied to Rs (as referred to in para 26 above). There is no contemporaneous record of that communication available to the ET, but MG told the tribunal that the police told her to make a report to ActionFraud, which she did on 19 February 2020, as referred to by MG in an email to the police dated 29 November 2020.

[32]On 15 May 2020, MG made a report to the police by completing an on-line form, a copy of which was in the hearing bundles. That records, materially: 32.1. An alleged offence committed in the period from 15/1/20 (the date C began her website) and ongoing. 32.2. MG wrote that Rs had received the First Claim, which she described as being for “unfair dismissal, unlawful deductions to wages, racism, discrimination, emotional torture & slavery”; that C had since made various other allegations against them during the course of proceedings; that C had now brought the present claim; and that in January 2020 they became aware of C’s website, about which MG records considerable detail both as to its content and how that has been/is damaging to her and SG. 32.3. On 16/5/20, the police recorded that what had been disclosed by MG constituted a ‘civil dispute’ and ‘This should be a no crime and closed’. That characterisation was reviewed on 22/5/20, when the file was kept open on the basis of potential harassment 32.4. On 26/5/20 the file was closed on the basis of the allegation being false and/or there being no evidence of an offence; dismissing the possibility of criminal harassment on the basis that ‘suspect is not actually making contact with victim’. - 8 -

[33]MG told us in evidence, and we accept, that her reason for making this report to the police was to get them to require C to stop using her website to link Rs’ names with posts about child abuse, etc, on the basis that she considered such conduct to amount to harassment of them by C.

[34]We accept that evidence (and reject C’s alternative potential reason for MG making that report as being the First Claim) because:- 34.1. The report was made some 21 months after Rs were sent the First Claim; 34.2. The ‘offence date’ (see above) is clearly tied to the existence of the website; and 34.3. The balance of the matters complained of by MG in the online form concern the website, albeit there is some detail given about the First Claim.

[35]Some time later, on 8 November 2020, an email was sent from an unknown address to SG’s employer, containing links to the judgments etc in the litigation between the parties, obviously designed to embarrass and/or cause harm to SG. C did not admit causing this email to be sent, but refused to answer questions about who did send it. Given that refusal, and in any event, we find that C caused that email to be sent.

[36]Later in November 2020, MG initiated further communications with the police, which prompted PC Cartwright to write to C by email dated 27/11/20 to say that the police had been contacted regarding content posted by C on her website, in the hope that C could be persuaded not to post further such content (MG was not named in the email). The email stated that the report was presently closed, but that if C’s behaviour were to continue, that might require investigation and potentially arrest for the offence of harassment.

[37]C told us that when she subsequently spoke to the police, they told her in effect that MG’s frequent requests of them to do something had in effect caused them to write that email to mollify MG.

[38]It certainly appears that the police told MG the email had been written, since the following day, 28/11/20, MG wrote to the police thanking them for letting her know, asking them if any action could be taken against C for having made - 9 - ‘misrepresentations’ in her CV and/or whether the police could link that with the website postings by C in a case against her.

[39]MG told us in evidence that the purpose of the report(s) to the police in November 2020 was to get them to require C to stop using her website to link Rs’ names with posts about child abuse, etc, on the basis that she considered such conduct to amount to harassment of them by C, and in part because of the email sent to SG’s employer on 8/11/20 (referred to above). We accept that evidence, which is entirely consistent with the contemporaneous documents we have referred to above, as with the chronology of events. We reject, for those reasons, that MG made the reports in November 2020 because of the First Claim.

The Law

[40]There was no dispute, and almost no discussion, as to the relevant principles of law. Direct discrimination

[41]As to the claims of direct discrimination, s. 13 EqA 2010 (the Act) provides that (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

[42]Section 136 of the Act provides, as to the burden of proof, that(1) This section applies to any proceedings relating to a contravention of this Act.

(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.

(3) But subsection (2) does not apply if A shows that A did not contravene the provision.

[43]Although the two-stage analysis of whether there was less favourable treatment followed by the reason for the treatment can be helpful, as Lord Nicholls explained in Shamoon at [8], there is essentially a single question: “did the claimant, on the proscribed ground, receive less favourable treatment than others?” - 10 -

[44]A claimant does not have to show that the protected characteristic was the sole reason for the decision; “if racial grounds or protected acts had a significant influence on the outcome, discrimination is made out”: Nagarajan v London Regional Transport

[2000] 1 AC 501

at pp512-513. The discriminator may have acted consciously or subconsciously: Nagarajan at p522.

[45]We refer to well-known remarks of Mummery LJ in Madarassy v Nomura International Plc

[2007] ICR 867

, [56-58] on the burden of proof issue, albeit in the context of a claim that the claimant had been treated less favourably than actual comparators: that for stage 1 of the burden of proof provisions to be met, what is required is that “a reasonable tribunal could properly conclude” from all the evidence, that discrimination occurred. Victimisation

[46]Section 27 of the Act provides:(1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, …

(2) Each of the following is a protected act— (a) bringing proceedings under this Act; … (d) making an allegation (whether or not express) that A or another person has contravened this Act.

[47]Section 136 (reversal of the burden of proof) applies to victimisation claims: Greater Manchester Police v Bailey

[2017] EWCA Civ 425

[48]As in a discrimination claim (see above), the claimant must show that the protected act was a significant influence, or an effective cause of the detriment complained of. She does not have to show that it was the sole or main cause. - 11 -

[49]In Chief Constable of West Yorkshire Police v Khan

[2001] UKHL 48

[2001] ICR 1065

, a greater distinction was drawn between the 'but for' test and that which should be applied in employment discrimination cases. Lord Nicholls considered that the test (at least in the context of victimisation) must be: what was the reason why the alleged discriminator acted as they did? What, consciously or unconsciously, was their reason? Looked at as a question of causation, 'but for …' was an objective test; but the anti-discrimination legislation required something different. The test should be subjective: “Causation is a legal conclusion. The reason why a person acted as he did is a question of fact.”

[50]In the same case, Lord Hoffmann, addressing the argument that a respondent might raise that it would have acted in the same way even if the claimant had done a similar act to the protected act but which would not have constituted a protected act, said this: 49 The purpose of the statute is that a person should not be victimised because he has done the protected act. It seems to me no answer to say that he would equally have been victimised if he had done some other act and that doing such an act should therefore be attributed to the hypothetical “other persons” with whom the person victimised is being compared. Otherwise the employer could escape liability by showing that his regular practice was to victimise anyone who did a class of acts which included but was not confined to the protected act. 50 The requirement that doing the protected act must have been the reason for the less favourable treatment is adequate to safeguard an employer who acted for a different and legitimate reason. On the other hand, it will rightly provide no defence for an employer who can only say that, although his reason was indeed the doing of the protected act, it formed part of a larger class of acts to which he would have responded in the same way. …

[60]A test which is likely in most cases to give the right answer is to ask whether the employer would have refused the request if the litigation had been concluded, whatever the outcome. If the answer is no, it will usually follow that the reason for refusal was the existence of the proceedings and not the fact that the employee had commenced them. On the other hand, if the fact that the employee had commenced proceedings under the Act was a real reason why he received less favourable treatment, it is no answer that the employer would have behaved in the same way to an employee who had done some non-protected act, such as commencing proceedings otherwise than under the Act. Harassment51. As to harassment, s. 26 of the Act provides: (1) A person (A) harasses another (B) if— - 12 - (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. … (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect.

52. The “related to” test is broader than the “because of” test in s. 13. However, ss Underhill LJ explained in Unite the Union v Nailard

[2018] IRLR 730

at [108]-[109], the tribunal is required to make findings as the motivations and thought processes of the individual decision-makers as to whether their actions were ‘related to’ the protected characteristic. Protected disclosure

53. On the basis of our factual findings, and as explained further below, we did not need to consider the law in relation to protected disclosures. Discussion 52. Both parties provided detailed oral submissions on day three of the hearing, for which we were grateful. We have taken those fully into account and refer to them as appropriate. - 13 - 53. Given the limited nature of the issues we have to resolve, we are able, having found the material facts, to reach the following conclusions without difficulty (applying the law as set out above).

54. Each of the reports made to the police by MG (August 2018, February, May and November 2020) constituted detriments to C.

55. In particular, we reject Mr Wilson’s submission that the August 2018 report did not constitute a detriment because C only found out about it some time later, by which time it formed only a ‘small part’ of what she was complaining about in Rs’ conduct. The fact is, learning that this report had been made to the police did cause C significant concern, unsurprisingly, and she complained about it as part of the present claim (see further below).

56. As to the subjective reasons of MG for making those reports, we have found the primary material facts as set out above. The August 2018 report

57. It was an effective cause (indeed the sole or main cause) of MG making the report in August 2018 that C had put in the First Claim, which MG found out about a matter of a few weeks at most before she contacted the police.

58. There is no basis for believing that the reason for MG making that report was because of or related to C’s race. We consider that no reasonable tribunal could conclude that MG would have made any different report on that occasion had C’s race been, say, white British or French.

59. Nor is there any basis for believing that C’s protected disclosure – about which MG almost certainly did not know at the time she made the report – influenced MG to make this report to the police. 60. In relation to the victimisation claim, as Mr Wilson submitted, the tribunal have to go on to consider whether the protected act – being bringing proceedings under this Act and/or making an allegation (whether or not express) that A or another person has contravened this Act – was an effective cause of MG making the August 2018 report to the police. - 14 -

[61]We find that it was, for the following reasons in brief:- 61.1. On a natural (objective) reading of the details of complaint in the First Claim, in particular the various words/phrases quoted at paragraph 7 above, it seemed to us that C was alleging that Rs had treated her badly because of her race or for reasons relating to her race. That of itself does not require a finding that MG (subjectively) understood the details of complaint in that way; but it does suggest that, in the absence of cogent evidence to the contrary, she likely did so. 61.2. When MG herself summarised the allegations in the First Claim, when writing the police report in May 2020, having recorded the relatively less significant claims of underpayment of wages and unfair dismissal (the latter of which, by then, it had been established could not be pursued because of C’s short service), she wrote that those allegations were of “racism, discrimination, emotional torture & slavery”. That makes it almost certain that an effective cause of MG taking the actions she did in investigating C’s CV and contacting the police in August 2018 was those allegations of ‘racism, discrimination’, etc. It was those allegations (not those of underpayment of wages and unfair dismissal) to which MG often referred in her evidence to us as revealing a very different person to the one she believed she had got to know as her nanny. Those allegations were a large part of the ‘reason why’ MG contacted the police in August 2018. The 2020 reports to the police

[62]As set out in our findings of fact, the reasons why MG made the later reports were: 62.1. The February report was made because of the discrepancies MG thought she had discovered in C’s CV; not because of or related to C’s race or because of the protected disclosure. 62.2. The May and November reports were made because of Rs’ concern about the contents of C’s website, and in the latter case in part because of the email sent to SG’s employer on 8/11/20; again not because of or related to C’s race or because of the protected disclosure. - 15 -

[63]We consider that no reasonable tribunal could conclude that MG would have made any different report on any of these occasions had C’s race been, say, white British or French. Remedy

[80]The tribunal adjourned the issue of remedy at the end of day three of the hearing (3 pm) until 11.00 am on day four. Having explained the relevant potential areas of factual inquiry, it was agreed that C would provide a short additional statement by 10.00 am and then give any further oral evidence on remedy at 11.00 am.

[81]C helpfully provided a written statement, which made it clear that in the circumstances – including her desire not to disclose certain documents and information to Rs – she was only seeking an award for injury to feelings. C confirmed that position orally when giving evidence on day four.

[82]The tribunal and Mr Wilson asked questions of C in relation to her claim for injury to feelings. We summarise the relevant evidence given by C, which we accepted (and which was not substantively challenged): 82.1. Initially, when been told in November 2019 that Rs had made the August 2018 report to the police, C had thought that so ‘extreme’ she had not believed it. When she realised it was true she was shocked and worried – she ‘felt awful’. 82.2. C approached the police to attempt to discover what MG has told them about her, but she was not given any clear answer save that the police suggested that MG had been gathering evidence to assist their defence in the First Claim. 82.3. C had subsequently applied for various jobs, including two with the police and one as an interpreter with the civil service. She was surprised not to get those jobs, for which she considered herself well qualified, and was concerned this was because of what MG had told the police about her. 82.4. A significant reason why she put in the present claim was to complain about MG’s report to the police about her. - 16 -

[83]Mr Wilson submitted that an award should be made at or near the bottom of the lower Vento band (£900) on the basis that, in context, learning of the 2018 report to the police had been a ‘temporary blow’ amongst other more significant issues for C, which could not be disentangled from that wider background. After the ‘initial shock’, he suggested, it formed a ‘small part of a bigger picture’.

[84]C did not accept this characterisation. She submitted that by MG reporting her to the police on the basis that C might not be an appropriate person to look after children, she was made to feel that the ‘core of her personality and values’ had been attacked as the result of her First Claim.

[85]On the basis of C’s evidence, as set out above, we are persuaded that this detriment was more substantial than Mr Wilson submitted it to be. Whilst a ‘one off’ event, it caused considerable shock and upset initially and an ongoing sense of concern in relation to future employment prospects, albeit that the latter concern became based on other matters also including the 2020 police reports made by MG.

[86]In the circumstances, the tribunal concluded that an award in the upper part of the lower Vento band was appropriate, and fixed that in the sum of £7,000 including interest to date. Oliver Segal QC

[1]The Claimant (C) made, in time, an application by email for reconsideration of the Judgment, on the implied basis that the interests of justice required it.

[2]At paragraph 1 of the application C complains that she was denied a fair trial.a. Paragraphs (a) and (b) (d) and (e) complain about case management decisions made/not made before the hearing. This tribunal has no jurisdiction to reconsider those case management decisions by reference to an application to reconsider the Judgment. (In relation to (e), the reliability of the Respondents’ evidence concerning the reports made to the police was a matter carefully weighed by the tribunal and dealt with in our Reasons.)

b. Paragraph (c) complains of a failure by the Respondents to disclose documents. Again, this is not something which this tribunal ruled on. It cannot now ‘reconsider’ this allegation. In passing, I have no note nor any recollection of the Respondents’ counsel saying that he did not know his clients had to disclose all relevant documents. I consider it most unlikely anything to that effect was said.

c. Paragraph (f) is simply an attack on part of the Respondents’ evidence, which was, in so as relevant, weighed by the tribunal in our Reasons.

[3]Paragraphs 2-25 and 27-28 of the application are an attempt to persuade the tribunal to make different factual findings, where C does not agree with our factual findings. Almost every argument made in those paragraphs was made by C at the hearing.

[4]Paragraph 26 refers to a matter I have already dealt with in correspondence (as set out there). There is no basis for ‘reconsidering’ that matter. - 2 -

[5]For the above reasons, there is no proper basis for a reconsideration of the Judgment. Oliver Segal QC

[1]The Claimant (C) brought various claims against the Respondents (R) on 21 January 2020 of discrimination, protected disclosure detriment and unfair dismissal.

[2]At a contested OPH on 10 June 2021 the tribunal decided that it did not have jurisdiction to hear (and therefore struck out) all claims except C’s complaints of race discrimination, harassment, victimisation and protected disclosure detriment regarding R reporting C to the police.

[3]Those claims were adjudicated following a full hearing, and a written judgment and reasons sent to the parties in June 2022. One claim of victimisation was upheld; C’s other claims were dismissed. An award for injury to feelings was made.

[4]In its reasons the Tribunal said this: … the majority of the evidence (documentary and witness statements) produced by both parties to the tribunal, was not directly relevant to the claims identified as proceeding by the tribunal on 10 June 2021 and as clarified in the List of Issues on 22 July 2021. Instead, both parties attempted by their evidence to demonstrate in as much detail as they could muster the supposed unreliability and bad faith of the other party. … Put shortly, the large majority of the evidence of the parties was not relevant to the claims/issues we had to determine.

[5]Subsequently, both parties have made applications for costs/preparation time orders pursuant to r. 76 of the ET Rules on the basis that the other party acted unreasonably in bringing and/or conducting the proceedings.

[6]C’s application complains of institutional discrimination including by this tribunal in rejecting some of her complaints and more generally. As against R, C’s application is primarily based on assertions that: R made false reports about C to the police after the claim had been issued; R had acted unreasonably in refusing JM and then in connection with a JM and in refusing to negotiate through ACAS; R had previously tampered with documents not before the tribunal at the final hearing; R’s legal representatives had acted unreasonably in part by not complying with directions - 2 - relating to the bundle, in part by not on occasion copying C into correspondence and in part by giving negligent legal advice;

[7]R’s application is primarily based on assertions that: C brought several claims which were struck out; C unreasonably caused the adjournment of PH’s; C made unreasonable allegations about R to the tribunal and externally including to the police; C unreasonably tried to get Mrs Griffiths’ name amended to her maiden name; C tried to record previous hearings; C published material related to the case, including disclosed documents, on her website in order to prejudice R and a potential witness for R; C reported R to the police and unreasonably included that police report in disclosure. The Law

[8]The relevant part of rule 76 reads: (1) A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that— (a) a party (or that party's representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted;

[9]Employment tribunals are not, in general, a cost-bearing jurisdiction. It is unusual for a party to be awarded costs; it is even more unusual when each party has won and lost in respect of different issues. It would be rare, perhaps unique, for costs to be awarded in a case where not only did each party win and lose different claims and issues, but the tribunal was critical of both parties in respect of their approach to the evidence and arguments (see para 4 above).

[10]In all events, the cases make clear that a tribunal’s discretion to award costs for unreasonable conduct is very wide; and, as it was put by Mummery LJ in Barnsley Metropolitan Borough Council v Yerrakalva

[2011] EWCA Civ 1255

[2012] IRLR 78

, para 42: “a costs decision in one case will not in most cases pre-determine the outcome of a costs application in another case: the facts of the cases will be - 3 - different, as will be the interaction of the relevant factors with one another and the varying weight to be attached to them.” (emphasis added).

Discussion

[11]The tribunal has no hesitation in rejecting both parties’ applications for costs.

[12]Some of the criticisms made by C are not matters the tribunal has jurisdiction to consider in that context. In that category is her complaint of institutional discrimination by this tribunal; and her assertions that: R had acted unreasonably in refusing JM and then in connection with a JM and in refusing to negotiate through ACAS; and that R’s legal representatives had acted unreasonably by giving negligent legal advice.

[13]Some of the criticisms made by R concern matters which, if they were to be raised at all to support a costs application, should have been raised at the time of earlier hearings to which they relate. In that category are their assertions that C unreasonably caused the adjournment of PH’s; and that C tried to record previous hearings.

[14]The remainder of the complaints made by both sides fall into the category of assertions that the other party has gone out of their way to pursue a vendetta against them by making complaints to the police and, in C’s case, by publishing material on her website and contacting R’s employers.

[15]The tribunal has no doubt that some, perhaps all of those actions complained of were unreasonable, in the sense that they were motivated in large part by a desire to damage the other party. However, the tribunal does not consider that those actions are properly to be described as done in “the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted”. Further, although it might be said that C has sought to pursue her vendetta against R with somewhat more intensity than R has done so against C, there has been fault on both sides.

[16]In the circumstances, the tribunal considers that it would be entirely unjustified for it to exercise a discretion to make an award for costs in this case. Further it was able to - 4 - reach that decision on the basis of the detailed written submissions of the parties without the need to convene a further hearing. Oliver Segal QC

Remedy

[1]The tribunal apologises for the delay in dealing with this reconsideration request, which was not forwarded to the Judge until 23 November.

[2]By her email of 14 September, the Claimant (C) seeks reconsideration of the Judgment and/or a hearing to determine the original costs applications, which were determined by the tribunal – as it had indicated to the parties was likely – on the basis of the lengthy written submissions made by each party.

[3]Dealing with the second request first (although not, strictly, a request for reconsideration), C has raised no matter in her recent email which she had not raised in her original written submissions. The tribunal can only repeat that it was able to reach a decision on the original costs applications, without hesitation, on the basis of the detailed written submissions sent by both parties.

[4]In relation to the reconsideration request, the tribunal first notes that C’s costs application was for her own preparation time costs, not for legal costs.

[5]In respect of the ‘grounds’ raised by C:a. Paragraph (a) complains that the Respondents (R) made costs applications against C in a previous case and in this case. That is not a basis for a costs application, still less for a reconsideration of the Judgment.

b. Paragraph (b) complains that the tribunal did not in the Reasons for the Judgment adequately refer to some of the grounds C had used to support her costs application. It is correct that the Reasons, explicitly, did not recite every part of C’s written submissions. At para 6 of those Reasons, the tribunal wrote that “C’s application is primarily based on [the following] assertions …” (emphasis added). The two additional matters referred to by C at paragraph (b) of her 14 September email are: i. The allegation that R ‘used’ a post-employment reference ‘in this bundle’ obtained by ‘misrepresentation’. - 2 - ii. The allegation that R’s solicitors had submitted and been allowed an amendment to their defence which included ‘false statements’ (see also paragraph (f)).

c. Both those matters were raised by C during the substantive hearing. Neither constitutes a finding of fact made by the tribunal. C is, in effect, attempting to reargue parts of her substantive claims as part of a costs application. There is no basis in law for the tribunal to reconsider the Judgment by reference to those arguments.

d. The tribunal comments below on C’s allegations of institutionalised abuse and intimidation by the police and tribunal system.

e. Paragraph (c) alleges that the Reasons for the Judgment contain an untruth that C tried to record previous hearings. The relevant part of the Reasons simply records that allegation being made by R as part of its costs application, which was refused.

f. Paragraph (c) also alleges that the Reasons for the Judgment are wrong in saying that documents that R had supposedly tampered with were not in the trial bundle. Some of the documents C refers to were not in the bundle so far as the tribunal is aware (such as a supposedly edited witness statement from a previous hearing). It is right that the pages of posts from C’s blog and the email from Mr X were in the bundle; they were considered as part of the substantive hearing; no finding was made that they had been concocted or tampered with; on the contrary, the tribunal accepted both as genuine documents and has criticised C for making some of those posts on her website.

g. Paragraphs (d) and (g) are simply attempts to re-litigate matters which the tribunal did not determine as C wanted in the substantive litigation.

h. The allegations of harassment, bias, institutionalised discrimination, etc, on the part of the Judge or tribunal in paragraphs (b), (d) and (e), are matters which C must raise if at all by way of appeal, not by way of an application for reconsideration of the decision not to award her costs. - 3 -

[6]For the above reasons, there is no proper basis for a reconsideration of the Judgment. Oliver Segal QC

Remedy

Discussion

[1]The Claimant has made a second application by email for reconsideration of the Judgment, on the basis that the interests of justice requires it.

[2]The application is made some two and a half years out of time.

[3]It refers to (but does not provide or attach copies of) six categories of what are alleged to be ‘new evidence’. It seeks an oral hearing of the application.

[4]The application discloses no proper grounds for a reconsideration – let alone one so far out of time. Without prejudice to which:a. There is no explanation of why the ‘new evidence’ could not have been obtained with reasonable diligence before the trial, or shortly after the trial – and it is inherently unlikely that this is the case.

b. There is no explanation of why any of the ‘new evidence’ would probably have had an important influence on the hearing – and for the reasons given for the original Judgment (as well as the refusal of the initial, in time, application for a reconsideration), that is also inherently very unlikely.

[5]Moreover, this was a case in which the Claimant was in significant part successful at trial.

[6]For the above reasons, there is no proper basis for a reconsideration of the Judgment.